FBI’s abuse of the surveillance state is the real scandal needing investigation

General John Allen, the US’s leading military commander in Afghanistan, is being investigated over his ‘communications’ with Jill Kelley. Photograph: Jalil Rezayee/EPA

The Petraeus scandal is receiving intense media scrutiny obviously due to its salacious aspects, leaving one, as always, to fantasize about what a stellar press corps we would have if they devoted a tiny fraction of this energy to dissecting non-sex political scandals (this unintentionally amusing New York Times headline from this morning – “Concern Grows Over Top Military Officers’ Ethics” – illustrates that point: with all the crimes committed by the US military over the last decade and long before, it’s only adultery that causes “concern” over their “ethics”). Nonetheless, several of the emerging revelations are genuinely valuable, particularly those involving the conduct of the FBI and the reach of the US surveillance state.

As is now widely reported, the FBI investigation began when Jill Kelley – a Tampa socialite friendly with Petraeus (and apparently very friendly with Gen. John Allen, the four-star U.S. commander of the war in Afghanistan) – received a half-dozen or so anonymous emails that she found vaguely threatening. She then informed a friend of hers who was an FBI agent, and a major FBI investigation was then launched that set out to determine the identity of the anonymous emailer.

That is the first disturbing fact: it appears that the FBI not only devoted substantial resources, but also engaged in highly invasive surveillance, for no reason other than to do a personal favor for a friend of one of its agents, to find out who was very mildly harassing her by email. The emails Kelley received were, as the Daily Beast reports, quite banal and clearly not an event that warranted an FBI investigation:

“The emails that Jill Kelley showed an FBI friend near the start of last summer were not jealous lover warnings like ‘stay away from my man’, a knowledgeable source tells The Daily Beast. . . .

“‘More like, ‘Who do you think you are? . . .You parade around the base . . . You need to take it down a notch,'” according to the source, who was until recently at the highest levels of the intelligence community and prefers not to be identified by name.

“The source reports that the emails did make one reference to Gen. David Petraeus, but it was oblique and offered no manifest suggestion of a personal relationship or even that he was central to the sender’s spite. . . .

“When the FBI friend showed the emails to the cyber squad in the Tampa field office, her fellow agents noted the absence of any overt threats.

“The squad was not even sure the case was worth pursuing, the source says.

“‘What does this mean? There’s no threat there. This is against the law?’ the agents asked themselves by the source’s account.

“At most the messages were harassing. The cyber squad had to consult the statute books in its effort to determine whether there was adequate legal cause to open a case.

“‘It was a close call,’ the source says.

“What tipped it may have been Kelley’s friendship with the agent.”

That this deeply personal motive was what spawned the FBI investigation is bolstered by the fact that the initial investigating agent “was barred from taking part in the case over the summer due to superiors’ concerns that he was personally involved in the case” – indeed, “supervisors soon became concerned that the initial agent might have grown obsessed with the matter” – and was found to have “allegedly sent shirtless photos” to Kelley, and “is now under investigation by the Office of Professional Responsibility, the internal-affairs arm of the FBI”.

[The New York Times this morning reports that the FBI claims the emails contained references to parts of Petraeus' schedule that were not publicly disclosed, though as Marcy Wheeler documents, the way the investigation proceeded strongly suggests that at least the initial impetus behind it was a desire to settle personal scores.]

What is most striking is how sweeping, probing and invasive the FBI’s investigation then became, all without any evidence of any actual crime – or the need for any search warrant:

“Because the sender’s account had been registered anonymously, investigators had to use forensic techniques – including a check of what other e-mail accounts had been accessed from the same computer address – to identify who was writing the e-mails.

“Eventually they identified Ms. Broadwell as a prime suspect and obtained access to her regular e-mail account. In its in-box, they discovered intimate and sexually explicit e-mails from another account that also was not immediately identifiable. Investigators eventually ascertained that it belonged to Mr. Petraeus and studied the possibility that someone had hacked into Mr. Petraeus’s account or was posing as him to send the explicit messages.”

So all based on a handful of rather unremarkable emails sent to a woman fortunate enough to have a friend at the FBI, the FBI traced all of Broadwell’s physical locations, learned of all the accounts she uses, ended up reading all of her emails, investigated the identity of her anonymous lover (who turned out to be Petraeus), and then possibly read his emails as well. They dug around in all of this without any evidence of any real crime – at most, they had a case of “cyber-harassment” more benign than what regularly appears in my email inbox and that of countless of other people – and, in large part, without the need for any warrant from a court.

But that isn’t all the FBI learned. It was revealed this morning that they also discovered “alleged inappropriate communication” to Kelley from Gen. Allen, who is not only the top commander in Afghanistan but was also just nominated by President Obama to be the Commander of US European Command and Supreme Allied Commander Europe (a nomination now “on hold”). Here, according to Reuters, is what the snooping FBI agents obtained about that [emphasis added]:

“The U.S. official said the FBI uncovered between 20,000 and 30,000 pages of communications – mostly emails spanning from 2010 to 2012 - between Allen and Jill Kelley . . . .

“Asked whether there was concern about the disclosure of classified information, the official said, on condition of anonymity: ‘We are concerned about inappropriate communications. We are not going to speculate as to what is contained in these documents.'”

So not only did the FBI – again, all without any real evidence of a crime – trace the locations and identity of Broadwell and Petreaus, and read through Broadwell’s emails (and possibly Petraeus’), but they also got their hands on and read through 20,000-30,000 pages of emails between Gen. Allen and Kelley.

This is a surveillance state run amok. It also highlights how any remnants of internet anonymity have been all but obliterated by the union between the state and technology companies.

But, as unwarranted and invasive as this all is, there is some sweet justice in having the stars of America’s national security state destroyed by the very surveillance system which they implemented and over which they preside. As Trevor Timm of the Electronic Frontier Foundation put it this morning: “Who knew the key to stopping the Surveillance State was to just wait until it got so big that it ate itself?”

It is usually the case that abuses of state power become a source for concern and opposition only when they begin to subsume the elites who are responsible for those abuses. Recall how former Democratic Rep. Jane Harman – one of the most outspoken defenders of the illegal Bush National Security Agency (NSA) warrantless eavesdropping program -suddenly began sounding like an irate, life-long ACLU privacy activistwhen it was revealed that the NSA had eavesdropped on her private communications with a suspected Israeli agent over alleged attempts to intervene on behalf of AIPAC officials accused of espionage. Overnight, one of the Surveillance State’s chief assets, the former ranking member of the House Intelligence Committee, transformed into a vocal privacy proponent because now it was her activities, rather than those of powerless citizens, which were invaded.

With the private, intimate activities of America’s most revered military and intelligence officials being smeared all over newspapers and televisions for no good reason, perhaps similar conversions are possible. Put another way, having the career of the beloved CIA Director and the commanding general in Afghanistan instantly destroyed due to highly invasive and unwarranted electronic surveillance is almost enough to make one believe not only that there is a god, but that he is an ardent civil libertarian.

The US operates a sprawling, unaccountable Surveillance State that – in violent breach of the core guarantees of the Fourth Amendment – monitors and records virtually everything even the most law-abiding citizens do. Just to get a flavor for how pervasive it is, recall that the Washington Post, in its 2010 three-part “Top Secret America” series,reported: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.”

Equally vivid is this 2007 chart from Privacy International, a group that monitors the surveillance policies of nations around the world. Each color represents the level of the nation’s privacy and surveillance policies, with black being the most invasive and abusive (“Endemic Surveillance Societies”) and blue being the least (“Consistently upholds human rights standards”):

And the Obama administration has spent the last four years aggressively seeking to expand that Surveillance State, including by agitating for Congressional action to amend the Patriot Act to include Internet and browsing data among the records obtainable by the FBI without court approval and demanding legislation requiring that all Internet communications contain a government “backdoor” of surveillance.

Based on what is known, what is most disturbing about the whole Petraeus scandal is not the sexual activities that it revealed, but the wildly out-of-control government surveillance powers which enabled these revelations. What requires investigation here is not Petraeus and Allen and their various sexual partners but the FBI and the whole sprawling, unaccountable surveillance system that has been built.

Related notes

(1) One of the claims made over the last week was that Broadwell, in public comments about the Benghazi attack, referenced non-public information – including that the CIA was holding prisoners in Benghazi and that this motivated the attack – suggesting that someone gave her classified information. About those claims, a national security reporter for Fox reported:

“that a well-placed Washington source confirms that Libyan militiamen were being held at the CIA annex and may have been a possible reason for the attack. Multiple intelligence sources, she also reported, said ‘there were more than just Libyan militia members who were held and interrogated by CIA contractors at the CIA annex in the days prior to the attack. Other prisoners from additional countries in Africa and the Middle East were brought to this location.'”

Though the CIA denies that “the agency is still in the detention business”, it certainly should be investigated to determine whether the CIA is maintaining off-the-books detention facilities in Libya.

(2) I’ve long noted that Michael Hastings is one of the nation’s best and most valuable journalists; to see why that is so, please watch the amazing 8-minute clip from last night’s Piers Morgan Show on CNN embedded below, when he appeared with two Petraeus-defending military officials (via the Atlantic’s Adam Clark Estes). When you’re done watching that, contrast that with the remarkably candid confession this week from Wired’s national security reporter Spencer Ackerman on how he, along with so many other journalists, hypnotically joined what he aptly calls the “Cult of David Petraeus”.

(3) I gave a 40-minute speech this summer on the Surveillance State and the reasons it is so destructive, which can be viewed on the video below; Alternet transcribed the speech here: